Jun 25, 2019 | Updated: 07:32 AM EDT

Unvaccinated Kentucky Student Cannot Return to School, Says Judge

Apr 03, 2019 08:42 AM EDT


A Kentucky high school student lost his lawsuit challenging an order that barred him from school because he refuses to obtain the chickenpox vaccine. Jerome Kunkel, 18, said he is not against all vaccines, but he is opposed to those that use aborted fetal cells in their manufacture, including the chickenpox vaccine. The senior at Assumption Academy in Boone County sued the Northern Kentucky Independent District Board of Health after it banned students without chickenpox immunity from attending school and extracurricular activities during an outbreak.

Jeff Mando, who represented the health department, said the ruling "upheld the health department's mission to protect public health and the welfare of folks in Northern Kentucky."

Kunkel's lawyer, Christopher Wiest said he argued in court that the ban would not be effective in halting the spread of chickenpox, which was found in 32 students, about 13 percent of the student body.  "The chickenpox order makes no sense," Wiest said. "They all go to daily and weekly mass. The parish receives communion on the tongue. Communion-age kids are going to spread chickenpox. That testimony was unequivocal."

During the court hearing, Kunkel asked a judge to let him go back to school and lift a ban that he says the health department imposed in an act of religious retaliation amid an outbreak of chickenpox. But the lawyer for the health department disputed Kunkel's claim.

"This is not a case of religious discrimination," Mando said. "Instead, it presents this question: Do unvaccinated students at Assumption have the right to attend school, play basketball and attend other extracurricular activities in the face of an outbreak of a very serious and infectious disease at the school?"

But the real deciding blow came when Mando pointed out that the state form that the Kunkels signed to get Jerome exempted from vaccines on religious grounds contains the warning, "This person may be subject to exclusion from school, group facilities or other programs if the local and/or state public health authority advises exclusion as a disease control measure."

The health department issued a statement after the ruling that read, in part:

"The Court's ruling ... underscores the critical need for Public Health Departments to preserve the safety of the entire community, and in particular the safety of those members of our community who are most susceptible to the dire consequences when a serious, infectious disease such as varicella, is left unabated and uncontrolled."

In mid-February, the number of suspected chickenpox cases jumped from six to 18. Local health officials, consulting with state authorities, then banned extracurricular activities to prevent the disease from spreading to other parts of the state.

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